Murder by Treachery: When Does Someone Kill Treacherously? Murder Characteristic and § 211 StGB

Criminal Law: The Fundamental Difference Between Murder and Manslaughter

A widespread misconception among the public is the assumption that the difference between murder and manslaughter lies in the planning of the act. Many people mistakenly believe that a killing can only be classified as murder if it was planned, while manslaughter occurs in the heat of the moment. However, this popular notion does not correspond to the legal reality in Germany.

In reality, both offenses—murder and manslaughter—must be committed with simple intent. The decisive difference lies in the presence of special characteristics defined in the Criminal Code as “murder characteristics.” One of the most common and particularly relevant murder characteristics in case law is treachery.

The Murder Characteristics Under § 211 StGB

Legal Basis and Structure

In German criminal law, murder is regulated in § 211 StGB. According to § 211 (1) StGB, a murderer is punished with life imprisonment. The murder characteristics are defined in § 211 (2) StGB:

“A murderer is anyone who kills a person out of bloodlust, to satisfy sexual desire, out of greed, or for other base motives, treacherously or cruelly, or by means dangerous to the public, or to enable or conceal another criminal offense.”

The murder characteristics can be divided into three groups:

1. 1. Motives (bloodlust, satisfaction of sexual desire, greed, base motives)
   2. Manner of Execution (treacherously, cruelly, means dangerous to the public)
   3. Purpose of the Act (enabling or concealing another criminal offense)

Treachery as a Particularly Relevant Murder Characteristic

Of all murder characteristics, treachery is particularly relevant in practice and is examined by the courts in many cases. This is because this characteristic often plays a decisive role in the borderline area between murder and manslaughter, and its determination is frequently associated with particular difficulties.

Definition and Requirements of Treachery

Legal Definition

What exactly is the murder characteristic of treachery? According to the established case law of the Federal Court of Justice, a person acts treacherously when they  consciously exploit the victim’s unsuspecting and defenseless state with hostile intent.

The Three Core Elements of Treachery

1. Unsuspecting State of the Victim

A person is unsuspecting when they do not anticipate an attack at the time of the offense. The victim therefore does not expect to be attacked and is consequently unprepared. The unsuspecting state is a subjective element based on the victim’s perception and assessment.

A person is not unsuspecting, however, if they expect or even anticipate an attack. This may be the case, for example, if the attack was preceded by a dispute in which physical violence was already threatened.

2. Defenselessness of the Victim

The victim is defenseless when, as a result of their unsuspecting state, they are so restricted in their ability to defend themselves that they cannot ward off or hinder the attack. The defenselessness must be causally based on the unsuspecting state—the victim cannot defend themselves precisely because they do not expect an attack.

Even persons who are generally defenseless due to physical limitations or their situation (e.g., while sleeping) can be killed treacherously if they are also unsuspecting.

3. Conscious Exploitation with Hostile Intent

The perpetrator must recognize the victim’s unsuspecting and defenseless state and consciously exploit it. It is not sufficient that the victim happens to be unsuspecting—the perpetrator must perceive this and deliberately exploit it. Furthermore, this must occur with “hostile intent,” meaning that the perpetrator exploits the situation to the victim’s detriment.

Challenges in Establishing Treachery

Timing of the Unsuspecting State

One of the central difficulties in establishing treachery is determining the relevant point in time for assessing the unsuspecting state. The BGH has clarified in its case law that the beginning of the lethal attack is decisive. However, this point in time can be difficult to determine, particularly in multi-stage sequences of events.

Beginning of the Lethal Attack

In a landmark ruling, the BGH (judgment of May 24, 2023, case no. 2 StR 320/22) clarified that the attack “does not begin only with the actual act of killing but also includes the phase immediately preceding it.” This means that preparatory actions that lead directly into the act of killing can also be part of the attack.

Continued Effect of Circumstances Establishing Treachery

The BGH has also established that treacherous conduct can also lie in precautions taken by the perpetrator to create a favorable opportunity for the killing, provided these continue to have an effect during the act. This significantly expands the scope of application of treachery.

The Current BGH Case on Treachery (2023)

Facts of the Case

The Cologne Regional Court had convicted a man of manslaughter against his extramarital partner in 2022 (LG Cologne, judgment of March 17, 2022, case no. 104 Ks 23/21 ).

The defendant had driven with the woman in her car to a secluded location in 2020. While the woman was sitting in the passenger seat of the stationary vehicle, the defendant shot her twice in the head from very close range. The defendant was either outside the vehicle on the passenger side or behind the passenger seat on the back seat.

Assessment by the Cologne Regional Court

The LG Cologne denied the presence of treachery because it could not be established with certainty that the woman was actually unsuspecting at the moment of the first shot. The court considered it possible that the defendant had previously threatened her with the firearm, which would have eliminated the unsuspecting state.

Decision of the BGH

The BGH overturned the judgment of the LG Cologne and remanded the case for a new trial. In the BGH’s view, the Regional Court had applied too narrow a standard:

1. 1. The LG had incorrectly focused only on the moment of the first shot as the time of the attack.
   2. The BGH emphasized that the attack does not begin only with the actual act of killing but also includes the phase immediately preceding it.
   3. Even if a prior threat had occurred, this does not automatically exclude treachery.
   4. The LG should have examined whether the woman had any chance of escape or defense in the event of a possible threat.

Legal Consequences of the BGH Decision

The BGH’s decision shows that the examination of treachery must be differentiated:

1. 1. Even if the perpetrator initially threatens the victim and thereby eliminates their unsuspecting state, treachery can still be present if the victim nevertheless remains defenseless.
   2. The perpetrator can consciously create the victim’s unsuspecting and defenseless state by first placing them in a situation where they can no longer defend themselves.
   3. What is decisive is not only the moment of the act of killing itself but the entire complex of actions that directly leads to the killing.

Further Significant Case Law on Treachery

Classic Constellations of Treacherous Killing

Killing While Sleeping or from Ambush

Classic examples of treacherous killings are attacks on sleeping victims or attacks from ambush. In these cases, the unsuspecting state is regularly present because the victim does not expect an attack.

Killing After Feigning Peaceful Intentions

Treachery is also present when the perpetrator initially feigns peaceful intentions and then attacks by surprise. The BGH has emphasized in several decisions that exploiting a relationship of trust can be a typical characteristic of treachery.

A particularly spectacular case in which feigning peaceful intentions played a central role is the so-called “Doppelgänger Murder” of Eppingen, in which the victim was lured into a trap under the pretext of a free cosmetic treatment.

Limits of Treachery

Open Hostility and Prior Threats

No unsuspecting state and therefore no treachery exists when there is open hostility between perpetrator and victim and the victim must expect an attack. Prior specific threats can also exclude the unsuspecting state.

Special Victim Groups

The BGH has addressed in several decisions the question of whether an unsuspecting state can exist at all in certain victim groups, such as small children or unconscious persons. In the case of small children, the BGH has denied the unsuspecting state because they cannot yet recognize the danger. In the case of unconscious persons, the unsuspecting state was also denied because they cannot perceive an attack.

Practical Significance of the Distinction Between Murder and Manslaughter

Criminal Law Consequences

The distinction between murder and manslaughter has significant effects on the sentence:

• • Murder (§ 211 StGB): Life imprisonment

• • Manslaughter (§ 212 StGB): Imprisonment from 5 to 15 years

In cases of particularly serious manslaughter, according to § 212 (2) StGB life imprisonment can also be imposed, but this is the exception.

Significance for the Defense

For the defense in homicide cases, the question of whether treachery is present is often decisive. The defense strategy will focus on refuting the presence of treachery, particularly by:

1. Proving that the victim was not unsuspecting (e.g., through prior disputes or threats)
2. Demonstrating that the perpetrator did not consciously exploit the unsuspecting and defenseless state
3. Arguing that the act was committed in the heat of the moment and the perpetrator did not coldly calculate the situation

In a successful defense case before the Göttingen Regional Court, our firm was able to achieve through a targeted defense strategy that a defendant originally charged with manslaughter was convicted only of obstruction of justice.

Procedural Particularities

In proceedings for murder, the jury court always has jurisdiction, while in manslaughter cases the major criminal chamber can also decide. Furthermore, the requirements for evidence in murder characteristics are particularly high, as these must be established beyond doubt.

Conclusion and Outlook

The distinction between murder by treachery and manslaughter remains one of the most demanding tasks in criminal law practice. The current case law of the BGH shows that the examination must be differentiated and the entire complex of actions must be taken into account. Case law on treachery continues to evolve and responds to new case constellations. It remains to be seen how the Cologne Regional Court will decide in the remanded case and what further clarifications the BGH will make in the future. For practice, this means that a careful analysis of the specific circumstances of the offense is essential in order to make an accurate legal classification.